LANSING, Mich. (Michigan News Source) – Michigan legislators have been touting their “hate crimes” package of bills since they were introduced in April. The package of legislation includes bills HB 4474, HB 4475, HB 4476 and HB 4477, all of which passed the state House in June. In order for all of the companion bills to be enacted, both HB 4474 and 4476 would have to pass.

HB 4474, which defines hate crimes for the state, is co-sponsored by 46 of the 56 House Democrats and has no Republican support. It’s also supported by Michigan Democratic Governor Gretchen Whitmer. In the legislation, a person would be guilty of a hate crime if they maliciously and intentionally do any of the following to an individual based in whole or in part of an actual or perceived characteristic of that individual, regardless of the existence of any other motivating factors: use of force of violence on the other individual; cause bodily injury to the other individual; intimidate the other individual; damage, destroy or deface any real, personal, digital or online property of the other individual without that individual’s consent or threaten by word or act to do any of the above. The bill defines “intimidate” as a “willful course of conduct involving a repeated or continuing harassment of another individual that would cause a reasonable individual to feel terrorized, frighted or threatened, and that actually causes the victim to feel terrorized, frightened or threatened.” The bills adds that “intimidate” would not include constitutionally protected activity or conduct that serves a legitimate purpose – but who gets to decide what a “legitimate purpose” is, as it is undefined in the legislation.

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The actual or perceived characteristics listed include any of the following: race or color; religion; sex; sexual orientation; gender identity or expression; physical or mental disability; age, ethnicity; national origin or the association or affiliation with an individual or group of individuals in whole or in part based on a characteristic described above.

If convicted of a hate crime under the proposed package of bills, the defendant would have a felony on their record punishable by imprisonment of up to two years or a fine of up to $5K or both. There are also enhanced penalties. Or, if agreed to by the defendant, they could receive an alternative sentence of community service to “enhance the offender’s understanding of the impact of the offense upon the victim and the wider community.”

The package of bills also allows a victim to bring a civil cause of action against the offender regardless of existence or outcome of any criminal prosecution.

HB 4474 has been described by some in the Michigan and national media by many as vague and unconstitutional and there is even a Michigan Rep. Steve Cara (R-Three Rivers), who has vowed to sue the Governor if the bill gets to the governor’s desk and she signs it. The bill has been criticized and condemned as an attack on free speech with it’s generic definitions of words and vague statements that makes it illegal to “intimidate” someone or make them feel “frightened” or “threatened” if they are in a protected class (characteristic) or even in a perceived class they are associated with.

The Great Lakes Justice Center issued a statement about the bill saying, “Under the proposed law, a person will be ‘guilty of a hate crime’ if they merely ‘intimidate another individual.’ This is vastly broader than the current Ethnic Intimidation statute and encompasses an enormous amount of speech protected by the First Amendment.”

They went on to say, “‘Intimidate’ is defined by the bill as ‘a willful course of conduct involving repeated or continuing harassment of another individual that would cause a reasonable individual to feel terrorized, frightened, or threatened…Unlike ‘true threats,’ there is no exception to the First Amendment for words that ‘harass,’ ‘intimidate,’ or ‘frighten’ other persons. Such broad terms can be manipulated to mean whatever an alleged victim or prosecutor wants them to mean.”

David Kallman, an attorney with Kallman Legal Group and the Great Lakes Justice Center, says the bill is unconstitutional and adds, “You cannot prosecute someone based upon the alleged victim’s hurt feelings.”

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However, under HB 4474, it appears that you can – and you would be convicted of a felony.

Strikingly, under the vagueness of this legislation, it appears that, if the hate crimes legislation was currently in force, Michigan’s own Attorney Dana Nessel could have been in violation of HB 4474 when she ventured over to Hamtramck to protest against their flag resolution which bans the pride flag and others to be flown on city property.

The all-Muslim City Council in Hamtramck voted unanimously on June 13th to prohibit flags of any racial, ethnic, religious or sexual-oriented group on city property in a “Resolution to Maintain and Confirm the Neutrality Of the City of Hamtramck Towards Its Residents.” Many LGBTQ+ residents of the city spoke out about the ban, including doing so at a three-hour meeting before the vote.

The council meeting and subsequent vote led to AG Nessel showing up in Hamtramck to protest the decision. Hamtramck Mayor Amer Ghalib told former GOP gubernatorial candidate Tudor Dixon in a podcast that the state Democrats are “sending some elected officials to protest in our city and to threaten us.”

“Threaten.” That’s the word he used. The mayor of Hamtramck felt threatened, which is the language defined in HB 4474.

Nessel was protesting against the decision of all all-Muslim City Council and “religion” is the second actual or perceived characteristic defined that is protected in the legislation.

When Nessel joined hundreds of protesters in June who gathered outside of Hamtramck City Hall, she made what some might call intimidating threats. She said, “As Martin Luther King Jr. so aptly observed: ‘The hottest place in hell is reserved for those who remain neutral in times of great moral conflict. Anyone who accepts evil, without protesting against it, is one who cooperates with it.’”

She went on to say, “And make no mistake: homophobia, transphobia, are indeed forms of evil just as much as Islamophobia is.”

Michigan News Source reached out to attorney David Kallman about Nessel’s participation in the protest against the all-Muslim Hamtramck city council to see what he thought about whether the AG could hypothetically be investigated under HB 4474 based on her speech in Hamtramck.

He said that it really depends on how many times Nessel said things to make people feel threatened because HB 4474 uses the phrase “repeated or continuous harassment.”

Kallman said, “I don’t agree with the attorney general’s comments but I would defend her right to say it. But could she be charged under this law? Yes she could. But I don’t think that she should be and that’s why this law is a problem.”

To call out people as homophobes and transphobes and evil seems “malicious” to Kallman but he says her protest appeared to be a “one-off.” However, if she publicly went after the Hamtramck city of council again, she might be in violation of the hate crimes bills if there are victims like the mayor who continuously feel “threatened.”

The question is: What is repeated or continuous harassment? Is it more than one statement at a time – or do you have to make the statements at different events or at different times in different venues? AG Nessel made several statements at one event which could be construed as repeated and continuous. She also posted a video of her speech and put some of it in writing on her X social media account. Does that count as three instances of harassment against the all-Muslim city council which, under the proposed legislation, would initiate an investigation?

An investigation of AG Nessel? Kallman says, “The way it’s written right now (hate crimes legislation), absolutely, what the AG said, if she did it more than once, if she said it two or more times, she could be investigated and charged under their proposed hate speech bill.”

However, as a constitutional attorney, Kallman also says, “I would defend the AG.” He says that if the standard of strict scrutiny is used, then her free speech rights are protected.

Strict scrutiny, as explained by the Free Speech Center at Middle Tennessee State University, says that, “Strict scrutiny is the highest form of judicial review that courts use to evaluate the constitutionality of laws, regulations or other governmental policies under legal challenge. As Justice David Souter famously wrote in his dissenting opinion in Alameda Books v. City of Los Angeles (2002), ‘Strict scrutiny leaves few survivors.’ This means when a court evaluates a law using strict scrutiny, the court will usually strike down the law.”

Kallman concluded the interview with Michigan News Source by saying, “Could she (Nessel) be prosecuted? Yes. Should she be? No. Because she has the right of free speech. Her speech is not a true threat.”

That goes for the rest of the residents in the state as well. But how will that play out if the legislation passes is anyone’s guess.

Testifying in support of the hate crimes legislation included AG Dana Nessel; the Wayne County prosecutor representing the Prosecuting Attorneys Association of Michigan; Stand With Trans; LGBGT Detroit Mobilization; Disability Rights Michigan; Michigan Coalition to End Domestic and Sexual Violence; Jewish Community Relations Council and the National Association of Social Workers. Additionally, AARP Michigan supports HB 4474 and 4475 and the Michigan Catholic Conference supports HB 4476 and 4477.

Testifying against the bills were the Michigan Sheriff’ Association and ACLU of Michigan. Additionally, a representative of Michigan Initiatives testified in opposition to HB 4474 and Citizens for Traditional Values indicated opposition to HB 4474 and 4475.

The other bills in the package describe criminal procedures, updates sentencing guidelines, and create an Institutional Desecration Act for acts of destruction and vandalism or threats against places of worship, cemeteries, and educational facilities.

The attorney general’s office was contacted by Michigan News Source for a comment for this article but they did not return our request for comment.